Understanding an Affidavit – Published in the Statesman

Recently the Muslim Personal Law Board had to file an affidavit running into 68 pages in a proceeding initiated by the Supreme Court on its own motion. On the basis of a few selected lines of the bulky affidavit, the electronic and print media trivialised the stand taken by the Board. The concerted and coordinated stand of the majoritarian section of media relied upon a few lines in four different paragraphs of the affidavit. On this basis they created an impression which wasn’t based on what the Board had to say. It was a handful of columnists who presented a balanced view with criticism, which is certainly justified.

It is interesting to point out how the matter recently became sub-judice in the Apex Court. The issue before the Court was disputes between two groups belonging to the Hindu religion, wherein the Court had to take a view as to who succeeded in getting how much of the property of one Yaswant Chandrakant Upadhye and also the application of Hindu Succession (Amendment) Act of 2005.

On that issue, the two Hon’ble judges of the Supreme Court took a view in their judgment running into 20 pages and while concluding the view in relation to amendment in Hindu Succession Act stated that “one more aspect relating to gender discrimination against Muslim women which came up for consideration needs to be gone into as part-II of this order” (although there is no mention about ‘discrimination against Muslim women’ in the first Part).

And accordingly, the second part of the judgment running into four pages was devoted to a discussion on how Muslim women are subjected to discrimination and to examine this issue it was directed that “a PIL be separately registered and put up before the appropriate Bench as per orders of Hon’ble the Chief Justice of India”.

Since this issue had attracted a lot of media attention, one Sharaya Bano, whose divorce had taken place one week prior to the said judgment, directly approached the Supreme Court challenging the concept of ‘Triple Talaq’, polygamy, etc. and asked the Court to declare ‘The Muslim Personal Law (Shariat) Application Act, 1937’ and ‘The Dissolution of Muslim Marriages Act, 1939’ invalid to that extent.

The primary objections taken by the Board are in the nature of the Court’s jurisdiction to take up an issue on its own motion, an issue which is subject matter of legislative policy; personal laws being community driven laws cannot be rewritten in the name of social reform to implement Directive Principles of State Policy which envisaged Uniform Civil Code; the Principles can not take away the guarantees in the Chapter on Fundamental Rights of citizens etc. and in case the court wants to proceed further, then Muslim Personal Law provides for the practices to be followed on the issues of marriage, divorce and maintenance and these practices are based on holy scriptures of Al-Quran and sources based on Al-Quran.

It is not the case that the Supreme Court has not examined these issues on earlier occasions. A substantive petition to this effect was filed by Ahmedabad Women Action Group (AWAG) in 1996 seeking to declare polygamy in Muslim Personal Law as void practice offending Articles14 and 15 of Constitution and further the concept of unilateral Talaq by Muslim male to his wife without her consent and without resorting to judicial process of courts as void offending Art.13, 14 & 15. This petition had further sought to declare Shia-Sunni laws of inheritance as discriminatory to the females as their share was less and that was only on the ground of their sex.

Three Hon’ble Judges of the Supreme Court declined to entertain the writ petition by giving a reasoned judgment. Needless to state by that time the much celebrated judgment of Sarla Mudgal (1995) had already come wherein also the desirability of enacting a Uniform Civil Court was expressed.

Prior to that, a Bench of two Hon’ble judges had already dismissed a petition of Maharshi Avdesh in 1993 stating that the questions of enacting Common Civil Code and the law of 1986 as void being arbitrary and further the Shariat Law adversely affecting dignity and rights of Muslim women against their protection were matters for the legislature where courts cannot legislate.

However, the fact remains that a larger Bench of three judges in AWAG Case of 1997 had declined to entertain such Writ Petitions by reasoned order and had left one issue in relation to Muslim Women (Protection of Rights on Divorce) Act, 1986 open as said issue was pending before the Constitution Bench of the Supreme Court which was also decided (by five judges) in the Daniyal Latifi case (2001) stating that provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

After having taken such objections on sound legal principles, the affidavit of the Board proceeded to justify how Shariat Laws, based upon Quranic injunctions and Hadith are understood by many of believers in Islam. This stand is purely on the basis of religious scriptures and not based upon the enlightened understanding of an intellectual in a gradually reformed society.

In relation to “Triple Talaq” or husband’s right to pronounce Talaq (three times), the affidavit runs into 15 pages stating as to why the concept of ‘Triple Talaq’ should not be abolished by a Court of law. The affidavit clearly states that this is not the only form of Talaq and that the best form of divorce is not ‘Triple Talaq’. It has stated “that though pronouncement of Triple Talaq is considered to be a sin, it is still a valid and effective form of divorce”. It has cited contemporaneous instances where the Prophet always considered ‘Triple Talaq’ as undesirable but effective. Caliph Ummar declared it to be a sinful act of a man and said that the man be whipped for the sin but also that it ensured the separation of the couple.

This is the position based upon religious scriptures and ultimately a person not liking the said proposition is free not to follow the religious law prevailing in one school and may opt for a different school where the process is different from ‘Triple Talaq’. If a person doesn’t want to be guided by religious law the way it is, he can certainly opt for a general law passed by Parliament where the concept of Triple Talaq and polygamy do not exist.

On the question of unguided power while pronouncing Talaq, the affidavit has set out the illustrative example of divorce taking place in most developed countries like USA, UK, Germany, Austria, Netherlands and France where the law relating to divorce passes through the court process and has provides equal right to stop a divorce by the defending party. Even then the percentage of divorce goes between 54.8 and 38.3. These are the facts relating to guided and controlled processes.

To justify why a certain legal position in religion is correct may have a certain logic which might not go well with the enlightened generation. But the fact remains that divine law is not a man-made law and as held by the two-Judge bench of Bombay High Court in the case of State of Bombay Vs. Narasu Appa Mali in 1952 the Constitution itself recognizes the existence of these personal laws and thus it is not open for the State or the Central Legislature to legislate on topics falling within the purview of Personal Law. It is also based on the rationale that if personal law would fall under Article 13 then the fundamental rights under Article 17 and Article 25(2)(b) would become redundant.

To the issue of polygamy, the affidavit has devoted 12 pages wherein it has stated that it is only permitted and “not obligatory or desirable, rather jurists regard monogamy as a better practice in usual conditions”. It has further cited the circumstances and the conditions under which it is permitted including the severe warning for one who does not treat his wives justly, in case he adopts polygamy. This position has been tested with population of women exceeding that of men in different countries and also the legal protection granted by the legislature to those women who are not married but still enjoy the protection of progressive legislation like the Domestic Violence Act where every woman who is in a live-in relationship with a man is given legal protection and also given right to claim maintenance without distinction between a woman having a live-in relationship with a married man or a bachelor.

To bring facts on record about polygamy, different surveys of 1961 to 1984 have been cited by different organizations wherein polygamy in Hindus had been found to be between 5.05 and 5.80 per cent whereas polygamy amongst Muslims was found to be between 4.2 and 5.73 per cent.

In this background finding fault with the stand of the Board on polygamy is not that surprising. There could be certain sections in the affidavit, if read in isolation as reported by the media, that may appear to be unjustified. Also there could be certain statements which may suggest that in certain aspects a woman is not as strong as a man but the same affidavit also states that a woman is stronger than men in other aspects.

This article appeared in the Print Edition of The Statesman on 29th September, 2016LINK